By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A funeral home worker has lost her bid to obtain damages from her former employer over an injury suffered when she had to “catch” a 300-pound corpse.

Candice Marshall, who has not worked for almost 12 years since that incident, saw her claim for “negligence and breach of statutory duty” against Rock of Ages Funeral Chapel & Crematorium and its owners, Kelson and Dorcas Cox, dismissed by the Supreme Court on a legal technicality.

Justice Indra Charles found that Ms Marshall had not initiated her legal claim within the three years permitted by the Limitations Act for bringing personal injury cases, thus making her effort to obtain damages “statute barred”.

Detailing the background to the dispute, Justice Charles said Ms Marshall blamed her injuries on the funeral home’s “failure to provide adequate and fully functional equipment for transporting corpses”. However, her employers denied liability on the basis she was not authorised to perform such tasks, and “was instead on a frolic of her own” that ultimately caused her own downfall.

Recalling the events of April 9, 2009, the judge wrote: “Ms Marshall was unloading two bodies (corpses) from the first defendant’s van into its funeral home. The first corpse was unloaded without incident. In attempting to move the second corpse, which was about 300 pounds, the cart provided by the first defendant for transporting corpses malfunctioned.

“The wheels failed to lock into place. The result was that the elevated cart carrying the corpse dropped and Ms Marshall, who had lifted it, grabbed it before the cart dropped. The reflex resulted in Ms Marshall grabbing the cart to avoid dropping but, at the same time, bearing the entire weight of the corpse.

“At the time when Ms Marshall lifted the corpse, she was in a bent-over position. Once she stood up, she heard a ‘pop’ sound in her back and, in quick succession, she experienced hot and cold symptoms. She did not think anything of it.”

However, the following morning she was unable to move any part of her body, and could not turn her head or move her left arm. “The left side of her body was completely unresponsive,” Justice Charles added.

This sparked a six-year odyssey around several doctors and medical institutions, including Princess Margaret Hospital (PMH) where “she was advised that she had pulled and damaged a nerve in her neck”.

A specialist subsequently determined that the injury was going to cause multiple sclerosis, and Justice Charles noted: “Ms Marshall stated that, since 2014, she has seen and been assessed by numerous physicians.

“She has been placed on numerous medications to treat something that the doctors have yet to make a final conclusion about. Due to the quantity of medication that she had been using, she has developed new symptoms which her doctors are still assessing to determine their cause.”

However, Rock of Ages and the Cox’s argued that Ms Marshall’s claim was “statute-barred” because it was only filed on June 26, 2015 - more than six years after the accident - when the law says it must be filed within three years.

“The Defendants argued that the action brought by Ms Marshall is statute-barred because time begun to run against her on April 9, 2009, the date of the incident, or alternatively, the next day on April 20, 2010, when she could not move, or at the latest, in 2010 when she became aware that she was suffering from a chronic back injury,” Justice Charles said.

“Ms Marshall opposed the preliminary issue and argued that time did not begin to run against her until January 2014, when she was advised by her doctors that her condition might/would lead to the development of multiple sclerosis. According to Ms Marshall, she was ‘fixed’ with knowledge when she was informed of the development of a significant injury.”

Siding with the funeral home and its owners, Justice Charles ruled: “Ms Marshall’s belief between the incident and her 2010 PMH visit must have been that the injury was significant, as she was induced to visit PMH again by increased pain.

“Ms Marshall’s conduct was consistent with the belief that her injury was significant, not having worked since the incident. Further, the loss of the many amenities she suffered, must have triggered some belief that her injury was significant.....

“In my judgment, Ms Marshall knew enough, at the latest in 2010 when she visited PMH again, to make it reasonable for her to begin to investigate whether or not she had a case against the defendants,” the judge continued.

“Ms Marshall did not discharge the burden of proving that time did not begin to run until January 2014. All of the observable and ascertainable facts (which were provided in her witness statement) which existed between 2009 and 2010 constituted reasonable basis on which her belief that the injury was significant was held. Her actions during this time were consistent with such a belief.

“In my judgment, Ms Marshall knew that her injury was significant in 2010 when she was induced by increasing pain to visit PMH. Consequently, the limitation period lapsed in or about 2013. The writ having been filed in 2015 makes the present action statute-barred.”